Stanford scholars offer analysis on former FBI Director James Comey’s hearing before Senate committee

Former FBI Director James Comey appeared today before the Senate Intelligence Committee, testifying about FBI investigations involving Russia’s role in the 2016 U.S. presidential election and his interactions with President Donald Trump.

Stanford scholars Richard Epstein, Michael McConnell, Robert Weisberg and Amy Zegart provide their views on the hearing and where the investigation goes from here.

What is your most significant takeaway from today’s proceeding?

Zegart: The most significant takeaway is that Comey is a highly credible witness – and was treated as such by senators from both parties. This was a very bad day for President Trump. In the “he said, he said” conflict about why Comey was fired and whether the president was obstructing justice, Comey gained the upper hand today.

Weisberg: Comey finessed the question whether he believed Trump had obstructed justice. He carefully left that open and said that was up to [Special Counsel Robert] Mueller – and he said he was sure Mueller was “looking into it.” I take that to mean that both he and Mueller believe a case is not out of the question. Of course, it’s reasonably clear that Trump can’t be charged while in office, but Trump’s concern has to be a Mueller report that at least suggests that there is probable cause that the elements of the crime can be established.

 

Did the public learn anything today that hadn’t already been reported?

McConnell: The hearing revealed almost nothing of substance. The president behaved inappropriately in his conversation with Comey on Feb. 14, but still there is no evidence of actual wrongdoing. The former FBI director did not like being fired and thinks he has been “defamed.” We knew all that before.

It is easy to see why the president was frustrated by Comey’s refusal to state publicly what he told him privately, three times: that the FBI was not pursuing a criminal investigation of Trump. Rumors of such an investigation were swirling around Washington and had an obvious delegitimizing effect on the administration. There is nothing wrong with the president asking Comey to clear this “cloud” – which does not mean Comey lacked good reasons for keeping it secret. We do not know. His stated reason – that maybe the investigation would be reopened – is fairly lame, in my opinion.

Weisberg: While, in my view, Comey has made misjudgments, he has always been pretty temperate in his tone. We now know he is deeply angered by what he believes to be Trump’s mendacity and abuse of power, and coming from an otherwise temperate speaker, those remarks are pretty salient.

Zegart: We did not learn about any new events. What we did learn was how Comey was thinking about incidents and actions as they happened. All of this is new. There were four key revelations:

• Comey described his dinner with the president on Jan. 27 – when the president asked for a loyalty pledge – as an effort by Trump to develop a “patronage” relationship. In the world of the FBI, “patronage” is a dirty word. Nothing is more sacrosanct in the Bureau than independence from political influence. Comey’s use of “patronage” suggests quite a high level of concern.
• From his first meeting with President-elect Trump on Jan. 6, Comey worried that Trump could be a liar. After briefing the president about unverified salacious reports suggesting possible compromising information in the hands of the Russians, Comey dashed into his FBI vehicle, pulled out a laptop and recorded every detail he could remember from that conversation. That became his standard practice with presidential conversations and meetings. Comey has worked for three presidents – of both parties. He had never taken contemporaneous memos from his presidential conversations before. Again, this points to a very high level of concern. Comey explained that there were four factors prompting him to take notes: the circumstances of the situation, the substance of the issues, the president himself, and Comey’s gut feeling that one day he might need those notes to defend not only himself but the FBI.
• Comey revealed that he did not have confidence in Attorney General Jeff Sessions to handle the Russia investigation or the investigation into the activities of former national security adviser Michael Flynn – investigations that were related but distinct. Instead, Comey chose to share his concerns with his senior FBI staff – six other people – and not the attorney general.
• Comey was so convinced the regular Justice Department processes would not work impartially, honestly or successfully, he shared his own memos to a friend to pass onto the New York Times. His express hope was that their publication would trigger the appointment of a special counsel – which is in fact what happened. Throughout the hearing, Comey referred repeatedly to the vital importance of the special counsel and to Mueller’s integrity.

 

What issues weren’t addressed or fully explained that you believe need more clarification?

Weisberg: Comey hedged on the question whether Trump had ordered him to lay off Flynn. He conceded that Trump used the word “hope,” but at one point, he said that his impression was that this was at least a “direction.” That was telling, and one wonders whether in the closed session Comey is going into the nuances further. Also, we need to know more about the legal basis for Comey’s decision to leak his memos through Professor [Daniel] Richman.

Epstein: He did not offer evidence of a patronage relationship, which would cover much more than the Flynn matter. He did not explain why he thought that Trump would lie under the circumstances and he did not give sufficient credit to the want of any follow-up on the initial request.

No one can defend Trump, as we knew, for talking like this in private, but to treat this as an order seems odd in the extreme. Comey knew when he was under orders – it was when [former Attorney General] Loretta Lynch told him to call an investigation a “matter,” in order to defuse political tensions. He should not have gone along because if he yields to one direct order, he may have to do so on another.

Zegart: I have some lingering questions: Is the attorney general currently a subject of an FBI counterintelligence or criminal investigation? Are there tapes of the president’s conversations as Trump has implied in his May 12 tweet? Why did White House Deputy Press Secretary Sarah Huckabee Sanders say today that she doesn’t know whether tapes exist? When will she know?

 

According to Comey’s testimony, did any of the president’s actions rise to the level of obstruction of justice?

McConnell: Trump’s comments about the Flynn investigation are more troubling. A president with more regard for professional decorum would know not to discuss a pending investigation of a political associate behind closed doors with the FBI director.

But if Comey thought the president was committing an obstruction of justice, he was under a legal obligation to inform proper authorities and an ethical obligation to resign. He did not do that, which suggests that the conversations did not cross that line. Instead, Comey asked a “friend” to leak his notes of the confidential conversation to the press. That is worse than anything there is evidence the president has done.

Weisberg: It’s still very hard to say, but the case is stronger than it was yesterday. While Trump said “hope,” in context – and we’d know more if we could see a video! – it could be construed as a threat or an order.

Epstein: No, because a request is not an order, and was not understood as such when made by the president. It seems as though Comey put the worst interpretation on this interaction for the moment. The case here is far weaker than any brought against Hillary Clinton for destruction of documents and lying in an FBI investigation, which look like classical cases of obstruction.

 

Where do we go from here? What are the next steps in this process?

McConnell: This will not go away. Perhaps there is evidence, somewhere, of “collusion” with Russia, which has not been leaked – in which case there could be some fire connected to this smoke.

I have every expectation that Mueller’s special prosecutor investigation will proceed with sobriety and care. But President Trump’s political critics will carry on. They are not outraged at Trump because of a belief that he committed the crime of obstruction of justice. They believe he committed the crime of obstruction of justice because they are outraged at Trump. If Comey’s testimony puts obstruction of justice talk to rest for a while, as it should, there will be something else. Sadly, if past is prologue, the president will give them more ammunition.

Weisberg: All the legal issues are in Mueller’s hands, so we must await public pronouncements from him. Whether the Senate probes further depends on what they learn in the closed session.

Epstein: Very vague, but this is far from impeachment.

 

Richard Epstein is the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution.

Michael McConnell is the Richard and Frances Mallery Professor and director of the Constitutional Law Center at Stanford Law School.

Robert Weisberg is the Edwin E. Huddleson, Jr. Professor and faculty co-director of the Criminal Justice Center at Stanford Law School.

Amy Zegart is a senior fellow at the Freeman Spogli Institute for International Studies, Stanford University, and the Davies Family Senior Fellow at the Hoover Institution.